Johnston v DHHS
[2019] VSC 431
•28 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03983
| CHRISTINE FAY JOHNSTON | Plaintiff |
| v | |
| DEPARTMENT OF HEALTH AND HUMAN SERVICES | First Defendant |
| - and - | |
| DR CHRISTINE LE | Second Defendant |
| - and - | |
| MR JOHN GRIFFITHS | Third Defendant |
| - and - | |
| MR ROGER WESTH | Fourth Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 August 2018 |
DATE OF JUDGMENT: | 28 June 2019 |
CASE MAY BE CITED AS: | Johnston v DHHS |
MEDIUM NEUTRAL CITATION: | [2019] VSC 431 |
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JUDICIAL REVIEW — Accident compensation — Medical Panel Review — Opinion on medical questions — Whether Panel exceeded its jurisdiction — Whether Panel failed to ask and answer the right question — Whether Panel failed to take into account relevant considerations — Whether Panel misunderstood the evidence before it — Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 284, 302, and 304.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | F C Spencer | Slater and Gordon Lawyers |
| For the First Defendant | M F Fleming QC R L Kaye | Injury Disputes Practice Lawyers |
HIS HONOUR:
Introduction
Christine Fay Johnston (the plaintiff) commenced employment with the Department of Health and Human Services (the first defendant) in mid-2014. She worked part-time as a disability support officer in a residential care unit for disabled adults.
On 6 June 2015, the plaintiff fell and injured herself at work.
On 15 June 2017, the plaintiff was examined by a Medical Panel (the Panel) convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA). The Panel was made up of the second, third and fourth defendants. On 10 August 2017, the Panel expressed its opinion in respect of certain questions relating to the plaintiff’s capacity and injuries resulting from her fall at work (the Opinion).
The plaintiff applies pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial review of the Opinion dated 10 August 2017. By her Amended Originating Motion dated 22 June 2018, she seeks an order in the nature of certiorari quashing the Opinion and an order in the nature of mandamus remitting the questions in respect of which the Opinion was given to a differently constituted medical panel to be reconsidered in accordance with law.
The first defendant submits that there is no error in the Opinion. The second, third, and fourth defendants did not participate in the proceeding and informed the Court that they would submit to such orders as the Court might make.
In support of her application, the plaintiff relies upon an affidavit affirmed by her on 4 October 2017, the affidavits of her solicitor, Blagica Miloseski, sworn on 5 October 2017 and 25 July 2018, and an affidavit by her husband, Tony Alfred Johnston, affirmed on 4 October 2017. Both the plaintiff and her husband were cross examined on their evidence. The first defendant relies on an affidavit sworn by its solicitor, Joseph Anthony Savedra, on 5 June 2018.
For the following reasons, I will grant the relief sought by the plaintiff.
Factual Background
The plaintiff was employed as a part time disability support officer with the first defendant from mid-2014. She worked in a residential care unit caring for people with physical and intellectual disabilities. Her duties included assisting residents with their personal care needs, driving residents to day centres, cooking and cleaning.
On 6 June 2015, the plaintiff tripped at work while holding dinner plates. She fell, face-first, with her arms outstretched.
On 23 August 2015, the plaintiff lodged a Worker’s Injury Claim Form in relation to the fall. In the form, she described her injury/condition and the parts of her body affected in the following terms: ‘pain in my right shoulder, arm and middle of my back and both knees’. The plaintiff’s claim was accepted and she was paid weekly payments of compensation and like expenses.
On 30 November 2015, the plaintiff underwent a right shoulder arthroscopy. She returned to work several weeks after the surgery, but had difficulty with some tasks because of pain. She ceased work with the first defendant in about the middle of 2016.
In February 2017, the plaintiff’s treating orthopaedic surgeon, Dr Li, requested an approval of liability from the first defendant’s WorkSafe agent, Xchanging Integrated Services Victoria Pty Ltd, for a right shoulder reconstruction. This request was refused on 21 February 2017 (the right shoulder refusal).
On 14 March 2017, the first defendant’s WorkSafe agent rejected the plaintiff’s claim for liability in relation to a left shoulder injury (the left shoulder refusal).
On 24 April 2017, the first defendant’s WorkSafe agent informed the plaintiff that payment for remedial massage treatment would cease.
On 7 June 2017, the plaintiff underwent a self-funded right shoulder replacement.
Referral to Medical Panel
On 13 June 2017, a Conciliation Officer with the Accident Compensation Conciliation Service (ACCS) referred certain questions in respect of the right shoulder refusal, the left shoulder refusal and the decision to cease payment of remedial massage treatment to the Panel pursuant to s 284 of the WIRCA (the Referral). Omitting formalities, the Referral was in the following terms:
…
4. Injuries Including Date of Injury:
Ms Johnston was employed as a part time Disability Support Worker with the Department of Human Services. She had been working in this role for over a year when on 6/6/15 she tripped and fell face first whilst holding dinner plates. She lodged a claim for “pain in my right shoulder, arm and middle of my back and both knees”.
Liability was accepted for the claim.
5. Issues in Dispute and Reason for Referral
There are three issues in dispute:
1. Ms Johnston is claiming that her left shoulder has been affected by overuse due to the injury in the right shoulder- the Authorised Agent has denied liability for the left shoulder injury, either for treatment or weekly payments
2. The Authorised Agent has denied liability for a right shoulder reconstruction
3. The Authorised Agent has denied liability for physiotherapy treatment
6. Agreed Facts Relevant to the Medical Questions
I am satisfied that the following facts are agreed:
Ms Johnston’s work and claims history with DHS
Ms Johnston continued working after the fall, then worked on and off until the middle of 2016; she has not worked since.
Facts in Dispute relevant to the Medical Questions
I am satisfied that the following facts are in dispute:
Nil
7. Medical Questions
1. What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injuries? (See Section 4 above)
2. What is the extent to which any medical condition of the worker’s left shoulder of the worker results from or is materially contributed to by the accepted right shoulder injury?
3. What is the extent to which the worker’s incapacity for work results from or is materially contributed to by the claimed left shoulder injury?
4. Do you consider the following medical, services or proposed medical services appropriate for the worker’s injury and/or condition:
(i) right shoulder reconstruction…
(ii) physiotherapy treatment?
Specify service, duration and frequency if necessary.
…
On 10 August 2017, the Panel issued a Certificate of Opinion in response to the Referral ‘on the medical questions set out below’:
Question 1: What is the nature of the worker’s medical condition of his right shoulder (including any sequelae) relevant to the claimed injury?
Answer: The Panel is of the opinion that the worker is currently suffering from persisting right shoulder dysfunction following an aggravation of right shoulder glenohumeral osteoarthritis, surgically treated and constitutional left shoulder degenerative changes.
Question 2: What is the extent to which any medical condition of the worker’s left shoulder results from or is materially contributed to by the accepted right shoulder injury?
Answer: The Panel is of the opinion that the worker’s constitutional left shoulder degenerative changes do not result from and are not materially contributed to by the accepted right shoulder injury.
Question 3: What is the extent to which the worker’s incapacity for work results from or is materially contributed to by the claimed left shoulder injury?
Answer: The Panel is of the opinion that the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment and any incapacity for work does not result from and is not materially contributed to by the claimed left shoulder injury.
Question 4: Do you consider the following medical services appropriate for the worker’s injury and/or condition:
(i) right shoulder reconstruction
(ii) physiotherapy treatment?
Specify service, duration and frequency if necessary
Answer:The Panel is of the opinion that right shoulder reconstruction (replacement) and post-operative physiotherapy, up to twice a week for 3 months, are appropriate medical services for the worker’s current medical condition of persisting right shoulder dysfunction following an aggravation of right shoulder glenohumeral osteoarthritis, surgically treated.
The Panel also issued its Reasons for Opinion on 10 August 2017 (the Reasons). The Panel’s reasoning and conclusions in respect of the disputes relating to the left shoulder refusal and the right shoulder refusal are set out in the following paragraphs:
On the basis of the clinical history, physical examination, the radiological investigation findings and information contained in the referral, the Panel concluded that the worker is suffering from persisting right shoulder dysfunction following an aggravation of right shoulder glenohumeral osteoarthritis, surgically treated, relevant to the claimed injuries. The Panel also concluded that the worker has constitutional left shoulder degenerative changes.
The Panel considered the extent to which the worker’s left shoulder condition resulted from or was materially contributed to by the claimed right shoulder injury.
The Panel noted the worker’s inconsistent history regarding the nature and onset of her left shoulder symptoms, and the worker’s contradictory history regarding the physiotherapy treatment for her left shoulder.
The Panel considered the worker’s history of her activities and the level of her functional restrictions in the period between the incident and September 2016 when there was evidence that her left shoulder began to be symptomatic. The Panel noted that the worker had stopped work (in February 2016), that she said she no longer did any significant gardening, and that she said her husband did most of the household chores (from the date of her arthroscopy in November 2015). The Panel also considered the worker’s history she gave that as her shoulders became more painful over time, she was doing less and less. The Panel, on the basis of the worker’s history, therefore, could not find any evidence of overuse of her non-dominant left shoulder and arm or that she used her left shoulder and arm excessively or repetitively, more than usual, when the use of her right arm was limited due to her injuries. The Panel noted that the worker’s complaints of symptoms have altered over time which the Panel considered to be entirely consistent with the course of constitutional age related degenerative changes. The Panel also noted the findings on radiological imaging of mild degenerative change within the glenohumeral joint.
Based on its consideration of the worker’s history of injury and progress, its assessment of the worker’s current left shoulder medical problems and review of the available radiological investigation findings, the Panel concluded that worker’s left shoulder in general and the degenerative changes of her left shoulder in particular have not been affected by her right shoulder injury in any way and the development of the worker’s left shoulder symptoms represent the natural progression of a degenerative condition. The Panel therefore concluded that the worker’s left shoulder condition does not result from and is not materially contributed to by the accepted right shoulder injury.
As the Panel concluded that the worker’s left shoulder has not been affected by the accepted right shoulder injury in any way the Panel concluded that the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment and any incapacity for work does not result from and is not materially contributed to by the claimed left shoulder injury.
The Panel gave consideration to the worker’s treatment requirements in relation to her current medical condition of an aggravation of right shoulder glenohumeral osteoarthritis, surgically treated.
…
The Panel therefore concluded that total right shoulder replacement is an appropriate medical service for the worker’s injury and/or condition.
Grounds of Review
The plaintiff relied on the following six grounds in support of her challenge to the Opinion:
(1)The Panel exceeded its jurisdiction by failing to answer the medical questions referred to it by the Conciliation Officer pursuant to s 284 of the WIRCA and instead answering different questions.
(2)In arriving at its opinion on referred questions 3 and 4, the Panel failed to ask itself and answer the right question in that the Panel restricted its consideration of the compensability of the plaintiff’s left shoulder condition to whether it was a sequela to her accepted right shoulder injury and failed to consider whether the plaintiff suffered a left shoulder injury as a result of the fall.
(3)The Panel failed to take into account a mandatory relevant consideration, being the history given to the Panel by the plaintiff as to:
a.when she experienced left shoulder pain; and
b.her use of her non-dominant left shoulder and arm after the fall in June 2015.
(4)The Panel took into account an irrelevant consideration that it was forbidden to consider, being histories purportedly given to the Panel by the plaintiff that were not in fact given.
(5)The Panel failed to take into account mandatory considerations, being:
a.the agreed fact relevant to the medical questions that the plaintiff continued working until the middle of 2016; and
b.the record of left shoulder pain on 6 May 2016 in the records of Springs Medical Centre which were before the Panel.
(6)The Panel failed to accord procedural fairness/constructively failed to exercise jurisdiction in that it:
a.failed to deal with the merits of the case and apply itself to the real question to be decided in carrying out its statutory function in that it acted upon a misunderstanding of the evidence given by the plaintiff relevant to the causation of her left shoulder injury; and
b.failed to correctly record the evidence given by the plaintiff resulting in the plaintiff being unfairly deprived of the opportunity to advance that aspect of her case, and the Panel did not have the opportunity of properly considering the plaintiff’s case.
Ground 1 – The Panel exceeded its jurisdiction by failing to answer the medical questions referred to it
Plaintiff’s submissions
Ground 1 was the principal focus of the plaintiff’s oral submissions challenging the Opinion. Those submissions were founded upon two primary points.
(a) First, that the Panel is a creature of statute with a function and jurisdiction defined by the WIRCA. Section 284 provides that the ACCS ‘may refer a medical question to a Medical Panel for an opinion under this Division’. Section 302 sets out the function of a Medical Panel as follows (emphasis added):
Function of Medical Panel
(1)The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.
(2)A Medical Panel must give its opinion on a medical question in accordance with this Division.
(b) Secondly, that it was manifest from the terms of the Opinion that the Panel did not direct itself to the particular terms of the Referral from the Conciliation Officer. Whereas Question 1 in the Referral was:
What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injuries? (see Section 4 above),
in the Opinion, Question 1 was set out as follows:
What is the nature of the worker’s medical condition of his right shoulder (including any sequelae) relevant to the claimed injury?
The plaintiff emphasised two particular interrelated differences in the terms of Question 1 in the Referral and Question 1 in the Opinion which, it was submitted, demonstrated that the Panel directed itself to a question which was materially different to that which was referred to it.
(a) First, whereas the question as referred was expressed generally as seeking the Panel’s opinion about the ‘nature of the [plaintiff’s] medical condition’, the question in the Opinion was confined to the ‘medical condition of his [sic] right shoulder’.[1]
(b) Secondly, Question 1 in the Referral was directed to the plaintiff’s claimed ‘injuries’, whereas in the Opinion the question was limited to the plaintiff’s claimed ‘injury’. This was said to be significant because Section 4 of the Referral, a reference to which appeared in parenthesis in Question 1 of the Referral, referred to the plaintiff’s original claim for ‘pain in my right shoulder, arm and middle of my back and both knees’, being a reference to a range of injuries, not merely an injury to the right shoulder. The plaintiff also directed attention to paragraph 1 of Section 5 of the Referral which identified as one of the three issues in dispute a claimed injury to the plaintiff’s left shoulder.
[1]It was accepted by the parties that the word ‘his’ appearing in Question 1 of the Opinion was a typographical error. In its written submissions it was contended by the first defendant that the mistaken reference to ‘his’ right shoulder indicated that the words ‘right shoulder’ were also a typographical error in Question 1 of the Opinion. This submission was not developed in oral submissions and is rejected. The obviously erroneous use of the word ‘his’ of itself provides no basis to construe that typographical error more extensively.
The plaintiff submitted that these differences were significant because, as recast by the Panel, Question 1 was limited to ascertaining the Panel’s opinion about whether the plaintiff was suffering from any ongoing compensable right shoulder condition or sequelae. The question as referred was not so restricted and required the Panel to give its opinion as to whether the plaintiff was suffering from any compensable left shoulder condition, not only as a sequela to the right shoulder injury, but also as a result of the fall.
In approaching its task in this way, the plaintiff submitted that the Panel did not undertake its function under the WIRCA as described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[2] (Wingfoot) and thereby committed jurisdictional error. The plaintiff relied on the High Court’s statements that ‘[t]he function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion’, and that ‘[t]he function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’.[3]
[2](2013) 252 CLR 480 (‘Wingfoot’).
[3]Ibid [47] (see also [48]).
In support of the proposition that a medical panel will act outside of its jurisdiction if it provides its opinion on questions different from those which are referred to it, the plaintiff also relied on the following statement by Chief Justice Warren in Silver Top Taxi Service Ltd v Fish (Silver Top)[4] in relation to s 67(1) of the Accident Compensation Act 1985 which was cast in the same terms as the relevant portion of s 302(1) of the WIRCA:[5]
In s 67(1), the term ‘question’ is qualified by the phrase ‘referred by a Conciliation officer of the County Court or the Authority or a self-insurer.’ Accordingly, to the extent that they have [sic] answered a question not asked of it, the Medical Panel has acted outside its jurisdiction. A natural and plain reading of the section dictates this conclusion.
[4][2006] VSC 448 (‘Silver Top’).
[5]Ibid [25].
The plaintiff also contended that the material before the Panel included reports from Dr Doig which expressed the view that her left shoulder condition arose out of or was attributable to the fall. This was relied upon to support the submissions that the question of the plaintiff’s left shoulder injury was clearly a matter before the Panel.
The plaintiff submitted that a necessary consequence of the Panel expressing its Opinion in respect of a different question to that which was referred to it was that she was denied procedural fairness in the sense that, because the parties were not given notice that the Panel intended to adopt this course, the plaintiff had no opportunity to be heard on the actual question addressed by the Panel.
First defendant’s submissions
The first defendant submitted that a close examination of the wording and context of Question 1 of the Referral does not bear out the contention that the Panel answered a different question to that which was referred to it. In particular, the ‘claimed injuries’ referred to in Question 1 of the Referral must be understood by the immediately following reference in parenthesis to Section 4 of the Referral. Section 4 did not contain any reference to a distinct injury to the left shoulder at the time of the fall. It therefore followed that Question 1 as answered in the Opinion, being directed to the medical condition of the plaintiff’s right shoulder including any sequelae, was in substance the same as the question which was referred to the Panel.
This conclusion was submitted to be consistent with the following contextual matters:
(a) Part 5 of the Referral identified the issues in dispute and reasons for referral. Although paragraph 1 of that section referred to the plaintiff’s claim that her left shoulder had been affected by overuse due to injury in the right shoulder, there was no mention of a distinct injury to the left shoulder at the time of the fall.
(b) That the WorkCover claim form submitted by the plaintiff contained no reference to her left shoulder having been injured in the fall itself.[6]
(c) That the Referral was accompanied by two reports from Dr Ipp which stated that the left shoulder pain developed after ‘over compensation due to right shoulder issues’.
[6]In answer to the question ‘What is your injury/condition, and which parts of your body are affected?’, the plaintiff wrote in the Worker Cover claim form ‘Pain in my right shoulder, arm and middle of my back and both knees’.
More generally, the first defendant also noted that, although the Referral documents were provided to the parties prior to the Referral being made, there is no evidence to suggest that the plaintiff requested any changes to the Referral which were not incorporated into the final version.
In answer to the plaintiff’s reliance on Dr Doig’s reports to support the proposition that the question of injury or aggravation to both shoulders as a result of the fall was an issue before the Panel, the first defendant argued that Dr Doig’s opinion was not clear-cut. In his original report, Dr Doig expressed the view there was aggravation of a pre-existing condition by reason of the fall, but also stated that, ‘[i]t is not clear whether the plaintiff was complaining of left shoulder pain at the time. This needs clarification with a general practitioner’. When Dr Doig was later shown a copy of the report of Dr Ipp, the general practitioner, dated 7 March 2017, Dr Doig did not directly answer the follow-up question as to causation. The first defendant therefore submitted that Dr Doig’s opinion does not lend weight to the plaintiff’s argument that the Panel had before it and ought to have considered whether the left shoulder condition arose directly from the fall.
Separate to these contentions, the first defendant submitted that, in any event, the Opinion and Reasons demonstrated that the Panel did in fact consider whether there was a left shoulder condition caused as a direct result of the fall. In that regard the first defendant relied on the fact that, in its Opinion in relation to Question 1, the Panel expressed the view that, in addition to a right shoulder condition, the plaintiff had ‘constitutional left shoulder degenerative changes’. The first defendant also relied on the first two paragraphs of the Reasons extracted in paragraph [18] above as indicating that, before considering whether the plaintiff’s left shoulder condition was materially contributed to by the right shoulder condition as is dealt with in the second of those paragraphs, the Panel first considered the plaintiff’s contention that her left shoulder was injured in the fall, which claim was rejected as indicated by the conclusion that the plaintiff had constitutional left shoulder degenerative changes. This analysis was submitted to be consistent with the fact that, earlier in the Reasons, the Panel noted that the plaintiff had initially reported to it that she had suffered pain in both shoulders at the time of the fall, but that she later told the Panel that her left shoulder pain started ‘only since September 2016’.
The first defendant submitted that the Panel was required to undertake its task in the face of what was submitted to be an unsatisfactorily framed Referral. Counsel for the first defendant conceded that it was unsatisfactory that Section 4 of the Referral, which dealt with the plaintiff’s injuries, only specified injuries that were the subject of claim in the WorkCover claim form and did not expressly include a claim made for a left shoulder injury in circumstances where such a claim had clearly been made by the plaintiff. The Conciliation Officer’s awareness of the plaintiff making such a claim was said to be evident from the terms of Question 3 and paragraph 1 of Section 5 of the Referral. The unsatisfactory framing of the Referral was also indicated by the fact that the reference in Section 4 of the Referral to the plaintiff’s claimed injury to her arm, back and knees was too broad because those injuries were not in dispute and had, in practical terms, ceased to be relevant.
In the face of this unsatisfactory framing of the plaintiff’s injuries, the first defendant initially submitted that the Panel had adopted a common sense and practical approach by ‘reconstructing’ Question 1. The Panel had ‘attempted to work from what they understood to be the issues in dispute, adopting a practical approach to what they understand the parties are on about and what question they actually want answered’. That course allowed the Panel, so it was submitted, to answer what ‘they saw to be the true nature of the question that had been sent to them’.
Later in its submissions, the first defendant appeared to retreat from the contention that the Panel had ‘reframed’ Question 1 of the Referral and submitted that the Panel had instead stated what the question ‘really was’. The Panel responded to Question 1 as if the Referral document had been a more ‘thoughtful’ document, including as if the claimed left shoulder injury had been made clearer. It was submitted that the Panel did in fact answer the question whether the left shoulder was a standalone injury from the fall, in addition to whether it was caused by overuse after the right shoulder injury, because it addressed the actual condition of the left shoulder condition by referring to ‘constitutional left shoulder degenerative changes’.
Consideration
A decision-maker will commit jurisdictional error if he or she does something which he or she lacks power to do. [7] That failing characterises the Panel’s decision in this case.
[7]See for example the statement by Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [163]: ‘There is jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’.
The Panel recast Question 1 from a question which sought an opinion about ‘the nature of the [plaintiff’s] medical condition (including any sequelae)’ to one which sought its opinion about ‘the nature of the [plaintiff’s] medical condition of his right shoulder (including any sequelae)’. The confinement in the terms of the question as recast by the Panel is self-evident. In circumstances where the plaintiff had clearly made a claim for a left shoulder injury, as conceded by the first defendant, the effect of recasting Question 1 was to limit any consideration of injury to the plaintiff’s left shoulder as being a sequela to the right shoulder injury. The question that the Conciliation Officer referred to the Panel was not so confined. In changing the terms of the question asked of it, the Panel removed the need to consider whether the plaintiff’s left shoulder injury was a distinct injury arising from the fall.
Contrary to the first defendant’s submissions, the reference in parenthesis to Section 4 at the end of Question 1 of the Referral does not enable one to construe the question as in substance being limited to the medical condition of the plaintiff’s right shoulder including any sequelae. Such an approach strains an ordinary reading of Question 1 given that the words fixed upon by the first defendant appear in parenthesis after the text of the question itself. Further and in any event, Section 4 of the Referral is cast in general terms by reference to the plaintiff’s employment history, the basic facts related to her fall and the terms of her WorkCover claim – which is not limited to injury to the plaintiff’s right shoulder – for which liability had been accepted. The reference in parenthesis to Section 4 at the end of Question 1 of the Referral does not provide a sound basis to construe the question in the manner contended for by the first defendant.
The first defendant’s reliance on the various ‘contextual matters’ as supporting a construction of Question 1 of the Referral as in substance being limited to the medical condition of the plaintiff’s right shoulder including any sequelae is also misplaced. First, there were contrary ‘contextual’ indications, in particular, the reports of Dr Doig which were before the Panel. In his first report dated 18 January 2017, Dr Doig described the plaintiff’s injury or medical conditions as being an ‘aggravation of bilateral osteoarthritis of the glenohumeral joints at the shoulders’, which he described as a constitutional condition. He stated that the fall ‘simply brought on the symptoms of the underlying condition’. Although Dr Doig also stated that it was unclear whether the plaintiff was complaining of left shoulder pain at the time of the incident, being a matter which required clarification with her general practitioner, in his subsequent report dated 9 February 2017 in which he was asked whether the aggravation of the plaintiff’s shoulder had resolved and if the aggravation was still materially contributed to by employment he stated as follows:
Ms Johnston is still symptomatic from both shoulders as a result of the fall. She denies prior problems with either shoulder. This needs to be clarified with the treating general practitioner. Any need for further surgical intervention in the shoulders is a result of the underlying constitutional osteoarthritis and not the symptomatic aggravation in the incident at work. The symptomatic aggravation, i.e. with respect to pain, has not resolved however following the incident.
Although it is apparent that Dr Doig wanted clarification as to whether the plaintiff had any prior problems with either shoulder, it is also clear that he held the view that the plaintiff had suffered a symptomatic aggravation of her constitutional condition in both shoulders as a result of the fall and that that condition had not resolved.
Secondly and more fundamentally, the first defendant’s reliance on various ‘contextual matters’ wrongly assumes that, in undertaking its statutory function in the face of an unsatisfactorily framed referral,[8] it was part of the Panel’s task to engage in a process of construing questions referred to it by reference to such considerations so as to identify and formulate the terms of the question(s) which ‘really’ were the subject of referral.
[8]As it was described by Senior Counsel for the first defendant.
A medical panel is a creature of statute with a function and jurisdiction defined by the WIRCA. Its function ‘in every case [is] to form and to give its own opinion on the medical question referred to it’.[9] Senior Counsel for the first defendant was unable to identify any provision in the WIRCA which gives power to a medical panel to ‘reframe’ or ‘restate’ a question referred by a Conciliation Officer. A medical panel does not have any such power whether for the purposes of ‘reframing’ or ‘restating’ a question so as to correspond with the presumed intention of the referral, or otherwise. In the face of a confusing or ambiguous question referred by a Conciliation Officer, the course which is open to a medical panel is to refer the matter back to the Conciliation Officer.[10] Contrary to the first defendant’s submission, the fact that neither party complained about the terms of the Referral is not to the point.
[9]Wingfoot (n 2) [47]. See also [48].
[10]It may be that the Panel could also decline to answer the question: See Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664.
This analysis is also consistent with the approach taken by Warren CJ in Silver Top[11] in relation to s 67(1) of the Accident Compensation Act 1985, in which her Honour found that, to the extent that a medical panel answers a question not asked of it, it will have acted outside its jurisdiction.[12]
[11]Silver Top (n 4).
[12]See paragraph [24] above.
It would subvert the scheme established by the WIRCA if it was open to a medical panel to unilaterally change the terms of questions referred to it in order to remedy perceived deficiencies in the questions the subject of a referral. Such an approach would also give rise to a number of other difficulties. For example, in adopting such a course, a medical panel’s belief that a question is deficient in some respect may itself be mistaken. It may also mean that the materials ordinarily provided by parties to a medical panel upon a referral may not be coincident with the terms of the questions which the panel might ultimately posit as the questions which ‘really’ or in ‘substance’ arise for determination. Such an approach would jeopardise the need to ensure procedurally fair decision-making by medical panels as parties may be denied the opportunity to be heard on the questions as ultimately stated for opinion by the panel.
I also reject the first defendant’s submission that, irrespective of whether Question 1 in the Opinion was different in substance to Question 1 of the Referral, the Panel nevertheless did in fact consider whether there was a left shoulder condition caused as a direct result of the fall. Central to this contention is the reference in the Panel’s Opinion and the Reasons to the plaintiff’s ‘constitutional left shoulder degenerative changes’. The Panel stated:[13]
On the basis of the clinical history, physical examination, the radiological investigation findings and information contained in the referral, the Panel concluded that the worker is suffering from persisting right shoulder dysfunction following an aggravation of right shoulder glenohumeral osteoarthritis, surgically treated, relevant to the claimed injuries. The Panel also concluded that the worker has constitutional left shoulder degenerative changes.
[13]See the full extract of relevant parts of the reasons in paragraph [18] above.
The Reasons give no indication that the Panel considered whether there was a left shoulder condition caused as a direct result of the fall. The existence of ‘constitutional left shoulder degenerative changes’ is not inconsistent with the existence of an ‘injury’ to the left shoulder within the meaning of WIRCA; namely, a ‘recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’.[14] That is, the plaintiff could have suffered from ‘constitutional left shoulder degenerative changes’ and yet sustained an injury to that shoulder as a direct result of the fall because the fall aggravated her underlying condition. This was the opinion expressed by Dr Doig as summarised in paragraphs [38]-[39] above. Contrary to the first defendant’s submissions, this possibility was clearly raised in Dr Doig’s reports. The paragraph of the Reasons referred to in the previous paragraph does not indicate that the Panel directed itself to this possibility. There is no indication in the Reasons that the Panel engaged with Dr Doig’s view that the plaintiff was symptomatic in both shoulders as a result of the fall.
[14]WIRCA s 3.
For these reasons, ground 1 is made out.
Ground 2 – The Panel failed to ask and answer the correct question
Ground 2 is directed at Questions 3 and 4 of the Referral which asked the Panel to provide an opinion on:
(a) the extent to which the plaintiff’s incapacity for work ‘results from or is materially contributed to by the claimed left shoulder injury’ (Question 3); and
(b) whether, relevantly, physiotherapy treatment was appropriate for the plaintiff’s ‘injury and/or condition’ (Question 4).
The plaintiff contended that, in arriving at its opinion in respect of these questions, the Panel wrongly restricted its consideration of the compensability of her left shoulder condition to whether it was a sequela to her right shoulder injury and failed to consider whether she suffered a left shoulder injury as a result of the fall.
As I have already observed, it was uncontroversial (and is highlighted by the terms of Question 3) that the plaintiff had made a claim for a left shoulder injury. Further, in his reports which were before the Panel, Dr Doig had expressed the opinion that the plaintiff had suffered a symptomatic aggravation of her constitutional condition in both shoulders as a result of the fall. In addressing itself to Questions 3 and 4, the Panel was therefore required to consider, not only whether the plaintiff’s left shoulder condition was a sequela to her accepted right shoulder injury, but also whether she had suffered a left shoulder injury as a result of the fall.
I have already rejected the first defendant’s submission in considering the asserted error in respect of Question 1, that the Panel did in fact consider whether the plaintiff had sustained a left shoulder injury as a direct result of the fall. The same conclusion is, if anything, more apparent upon a consideration of the Reasons relating to Questions 3 and 4.
In relation to Question 3, the Opinion was that the plaintiff had ‘no present inability arising from an injury such that she is not capable of performing her pre-injury employment and any incapacity for work does not result from and is not materially contributed to by the claimed left shoulder injury’. Its reasons for so concluding were as follows (emphasis added):[15]
Based on its consideration of the worker’s history of injury and progress, its assessment of the worker’s current left shoulder medical problems and review of the available radiological investigation findings, the Panel concluded that worker’s left shoulder in general and the degenerative changes of her left shoulder in particular have not been affected by her right shoulder injury in any way and the development of the worker’s left shoulder symptoms represent the natural progression of a degenerative condition. The Panel therefore concluded that the worker’s left shoulder condition does not result from and is not materially contributed to by the accepted right shoulder injury.
As the Panel concluded that the worker’s left shoulder has not been affected by the accepted right shoulder injury in any way the Panel concluded that the worker has no present inability arising from an injury such that she is not capable of performing her pre-injury employment and any incapacity for work does not result from and is not materially contributed to by the claimed left shoulder injury.
[15]See full extract in paragraph [18] above.
It is readily apparent from the above emphasised parts of the Reasons that, as with Question 1, in considering the plaintiff’s claimed left shoulder injury with respect to Question 3, the Panel wrongfully restricted itself to considering the compensability of the left shoulder condition as a sequela.
I reach the same conclusion in respect of Question 4. In the Opinion, the Panel concluded in respect of that question that:
…right shoulder reconstruction (replacement) and post-operative physiotherapy, up to twice a week for 3 months, are appropriate medical services for the worker’s current medical condition of persisting right shoulder dysfunction following an aggravation of right shoulder glenohumeral osteoarthritis, surgically treated.
Its reasons for so concluding were as follows (emphasis added):[16]
The Panel considered the nature, extent and frequency of the worker’s physiotherapy treatment. The Panel considered that a short course of physiotherapy following shoulder replacement surgery is a routine and accepted adjunct to surgery to ensure the best possible outcome after surgery. The Panel considered that post-operative physiotherapy is clinically indicated and is within the spectrum of services that would be recommended for the worker’s right shoulder condition in a post-operative state, without which, the post-operative outcome would be compromised.
The Panel considered the nature, extent and frequency of the worker’s physiotherapy treatment beyond the post-operative period. The Panel noted that extended physiotherapy sessions previously have not resulted in any significant symptomatic benefit for the worker, they have not resulted in any short or long lasting amelioration or resolution of her right shoulder condition, or improved her functional tolerances, or lessen her analgesic requirements. The Panel therefore considered that ongoing physiotherapy treatment is of no therapeutic value for the worker.
The Panel also considered that if provided on a continuing basis without short or long term gains, such physiotherapy treatment can foster negative pain beliefs, lead to dependence and reduce motivation to engage fully in a self-managed physical therapy program that has the potential to both aid general aerobic fitness, and improve functional outcome measures. The Panel also considered that ceasing ongoing physiotherapy beyond the immediate post-operative period would not result in a deterioration of the worker’s current condition.
The Panel concluded that post-operative physiotherapy on the right shoulder following right shoulder replacement surgery, up to twice a week, for 3 months, is an appropriate medical service for the worker’s injury and/or condition.
[16]Reasons, pg. 9.
It is apparent from the above emphasised parts of the Reasons that the Panel’s consideration of the appropriateness of physiotherapy treatment was wholly limited and confined to the plaintiff’s right shoulder and in particular her recovery from right shoulder replacement surgery. There is no reference whatsoever in the Panel’s Reasons with respect to Question 4 to the plaintiff’s left shoulder in particular, whether as sequela or as an injury as a direct result of the fall.
For these reasons, Ground 2 is made out. The Panel failed to ask itself and answer the correct question by restricting its consideration of the compensability of the plaintiff’s left shoulder condition and the appropriateness of physiotherapy treatment to whether they were sequelae to her right shoulder injury.
Ground 5 – The Panel failed to take into account relevant considerations
The plaintiff contended that, in arriving at its Opinion about the compensability of the plaintiff’s left shoulder condition, the Panel failed to take into account the following two considerations:
(a) that she continued working until the middle of 2016, being an agreed fact recorded in Section 6 of the Referral; and
(b) a note of left shoulder pain experienced by her in a record dated 6 May 2016 (the May 2016 record) which was before the Panel.
The Panel made no mention of either of the above matters in the Opinion or the Reasons. The plaintiff submitted that the Court should infer from this that the Panel failed to have regard to those matters in circumstances where, as outlined below, they were matters which the Panel was required to take into account.
Contrary to the agreed fact that the plaintiff continued working until the middle of 2016, the Panel instead found, by reference to the history given by the plaintiff, that she stopped work in February 2016.[17]
[17]See paragraph 4 of extract of Reasons in paragraph [18] above.
As to the May 2016 record, it formed part of the notes from the Springs Medical Centre and relevantly stated:
RTW going well, happy to stay on current hours
L shoulders bit tender during night
had to take some panadeine now and then, encouraged non-medication approaches (pillow/topical/exercise etc)
In considering what if any significance attaches to the fact that the Panel did not advert to the May 2016 record, the following parts of the Reasons are to be noted:
(a) The Panel referred to the history given to it by the plaintiff including that, after the fall, she said that ‘she felt “pretty sore” the next morning “because I went down hard”, and that she had pain in her “knees, both shoulders and everywhere”’.[18]
[18]Reasons, pg. 4.
(b) In relation to difficulties the plaintiff told the Panel that she experienced in performing certain tasks at work, the plaintiff told the Panel that the reason for the difficulties was ‘because of pain in both my shoulders, the right more than the left’. She also said that the bruising and pain in her knee ‘was nothing like the pain in my shoulders’.[19]
[19]Ibid.
(c) The Panel records that the plaintiff told it ‘that she started to get left shoulder pain and pain in her left upper arm around September 2016…’. The Reasons also record that she told the Panel that her physiotherapist ‘started to work on her left shoulder “around mid 2016”’.[20]
[20]Ibid, pg. 5.
(d) The Panel noted the following statement in the plaintiff’s treating general practitioner’s report dated 22 March 2017: ‘Left shoulder pains developed after overcompensation due to Right shoulder issues. This commenced Sep 7th 2016 on our records. No prior complaints existed in our medical records’.[21]
[21]Ibid.
(e) The Reasons include the following paragraph:
The Panel asked the worker about her pain experience at the time of the incident and she replied that she “remembers having pain”, that “my knees were hurting that night”, that “my body aches”, that she was “sore everywhere”, but that she “can’t say exactly what spots”. She stated that she just remembers being really sore after falling” [sic]. The Panel noted that the worker had initially reported to the Panel pain affecting both the right and the left shoulder at the time of her fall and the Panel further noted that she then later told the Panel that her left shoulder pain started “only since September 2016”.[22]
[22]Ibid, pg. 6.
(f) As set out in paragraph [18] above, the Panel’s conclusions in the Reasons included the following statements (emphasis added):[23]
The Panel noted the worker’s inconsistent history regarding the nature and onset of her left shoulder symptoms, and the worker’s contradictory history regarding the physiotherapy treatment for her left shoulder.
The Panel considered the worker’s history of her activities and the level of her functional restrictions in the period between the incident and September 2016 when there was evidence that her left shoulder began to be symptomatic. The Panel noted that the worker had stopped work (in February 2016), that she said she no longer did any significant gardening, and that she said her husband did most of the household chores (from the date of her arthroscopy in November 2015). The Panel also considered the worker’s history she gave that as her shoulders became more painful over time, she was doing less and less. The Panel, on the basis of the worker’s history, therefore, could not find any evidence of overuse of her non-dominant left shoulder and arm or that she used her left shoulder and arm excessively or repetitively, more than usual, when the use of her right arm was limited due to her injuries. The Panel noted that the worker’s complaints of symptoms have altered over time which the Panel considered to be entirely consistent with the course of constitutional age related degenerative changes. The Panel also noted the findings on radiological imaging of mild degenerative change within the glenohumeral joint.
Plaintiff’s submissions
[23]Ibid, pgs. 7-8.
The plaintiff submitted that the May 2016 record and the agreed fact that she continued to work until the middle of 2016 were, in the circumstances of this case, mandatory considerations to which the Panel was bound to have regard. Applying the principle that it is the statute, whether by express terms or by implication from its subject matter, scope and purpose, which determines which factors must be taken into account,[24] the plaintiff contended that the above considerations were mandatory considerations given the terms of s 304(a)(ii) & (b) of the WIRCA.
[24]See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41 (‘Peko-Wallsend’).
In support of this analysis, the plaintiff also relied on the judgment of Neave JA in Ryan v The Grange at Wodonga Pty Ltd.[25] Her Honour, with whom the other members of the Court of Appeal agreed, stated as follows in relation to the then equivalent provisions of Accident Compensation Act 1985:[26]
Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons. If the worker’s answers or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.
[25][2015] VSCA 17 (‘Ryan’).
[26]Ibid [60] (citations omitted).
The plaintiff further submitted that the Panel was erroneously fixated on the material before it which showed her left shoulder being symptomatic in September 2016. Because it failed to have regard to the May 2016 record, the Panel wrongly concluded that it was only in September 2016 that the left shoulder became symptomatic. The May 2016 record established, so it was submitted, that the attendance on the general practitioner in September 2016 was not the first medical attendance by the plaintiff in relation to left shoulder pain and that September 2016 did not mark the onset of that pain.
These failings by the Panel were submitted to be significant because the Panel’s findings about when the plaintiff had experienced left shoulder pain and when she ceased work were critical to its conclusion that her left shoulder condition was not a sequela to her right shoulder injury. The plaintiff referred to that part of the Panel’s Reasons extracted in the second paragraph in paragraph [61(f)] above. This reasoning was said to demonstrate that, central to the Panel’s conclusion, was what it perceived to be the gap between February 2016 (when the Panel stated that the plaintiff stopped work) and September 2016 (which the Panel identified as the time of the onset of symptoms in the plaintiff’s left shoulder condition).
First defendant’s submissions
In relation to the agreed fact that the plaintiff continued to work until the middle of 2016, the first defendant acknowledged that the Reasons instead record that the plaintiff stopped work in February-March 2016. It submitted however that this is what the plaintiff told the Panel as reflected in the second defendant’s notes and that, in any event, the difference between the dates when the plaintiff was said to have ceased work is not significant or fundamental.
In relation to the May 2016 record, the first defendant contended that it is difficult to read that document as referring to the onset of left shoulder pain in relation to the fall. It was submitted that the reference in the record to the plaintiff’s ‘L shoulders’ is not definitive evidence of left shoulder pain at that time and does not link any such pain to the fall which occurred in the previous year. The first defendant submitted that this is particularly so in the context of the other records from the plaintiff’s general practitioners. The first defendant pointed to a report made in March 2017 by Dr Ipp who noted that the plaintiff’s left shoulder condition commenced in September 2016 and a note in the general practitioner’s records on 19 September 2016 that the plaintiff’s left shoulder pain had begun before she went on a trip to New Zealand a couple of weeks before. The first defendant contended that there were no other references to left shoulder pain prior to September 2016 and that the May 2016 record should not be read as such.
Consideration
In considering this ground of review, I am mindful of the Court’s limited role in reviewing the exercise of an administrative function. I also acknowledge that not every failure to take into account a consideration will result in a decision being set aside. As stated by Mason J in Peko-Wallsend, ‘[a] factor might be so insignificant that the failure to take it into account could not have materially affected the decision’.[27]
[27]Peko-Wallsend (n 24) 40.
In relation to the agreed fact that the plaintiff continued to work until the middle of 2016, irrespective of what the plaintiff told the Panel on this point, the Panel was also clearly bound to take into account the agreed facts placed before it as detailed in the Referral.[28] The absence of any reference to this agreed fact in the Reasons and the fact that the analysis adopted by the Panel in the Reasons as outlined in paragraph [61] above was clearly premised on the view that the plaintiff stopped work in February-March 2016, indicates that the Panel failed to take this agreed fact into account.
[28]See Ryan (n 25) [60] referred to in paragraph [63] above; Moyston Court Fisheries Ltd v Dr John Malios [2007] VSC 518, [47].
As to the May 2016 record, contrary to the first defendant’s submissions, there is no particular difficulty in construing that document as referring to the onset of left shoulder pain in relation to the fall. That is the plain inference to be drawn from the date of the consultation and the references in the document to return to work (‘RTW’), tenderness in the plaintiff’s left shoulder and the plaintiff having to take panadeine.
I also do not accept the first defendant’s submission that the other medical records before the Panel were contextual indicators that the May 2016 record could not be taken as a reference to the onset of left shoulder pain in relation to the fall. This submission misses the point. In forming its opinion, the Panel was required to first consider all of the relevant material before it. Applying the approach in Ryan v The Grange at Wodonga Pty Ltd, as one of the documents provided to the Panel with the Referral, the May 2016 record formed part of the material which the Panel needed to take into account.
It is clear that the May 2016 record was not taken into account by the Panel given the absence of any reference to it in the Reasons and the Panel’s emphasis upon the plaintiff giving an ‘inconsistent history’ about the nature and onset of her left shoulder symptoms. That claimed history was cast in binary terms between the plaintiff allegedly originally informing the Panel that she experienced pain in both shoulders at the time of the fall and then later informing the Panel that her left shoulder pain only started in September 2016. The May 2016 record directly contradicts this dichotomy and as such would logically have had to have been addressed by the Panel if it had been taken into account.
In considering whether the Panel’s failure to take the two above matters into account could have materially affected the Opinion formed by the Panel, the significance of those matters is to be considered in the context of the other material before the Panel.[29] Adopting this approach, I accept the plaintiff’s submissions that the Panel’s findings and reasoning about when the pain in her left shoulder began and when she ceased work (as summarised in paragraph [61] above) were critical to the Panel’s conclusion as to whether the left shoulder condition was a sequela to her accepted right shoulder injury.
[29]Rodger v De Gelder [2015] NSWSCA 211, [101] (‘Rodger’).
As the plaintiff submitted, the ‘gap’ between when the Panel found she ceased work (February 2016) and when it found that her left shoulder became symptomatic (September 2016) was critical to its consideration about whether the plaintiff’s left shoulder was a sequela to the right shoulder. As the Panel reasoned, this gap supported a conclusion that there was a lack of evidence that the plaintiff used her left shoulder excessively or repetitively, more than usual, when the use of her right arm was limited due to injury.[30]
[30]See the extract from the Reasons in paragraph [61(f)] above.
It therefore cannot be said that it is immaterial that the Panel failed to have regard to both an agreed fact that the plaintiff ceased work in the middle of 2016 and a medical record indicating that her left shoulder became symptomatic in May 2016, before she ceased work. I accept the plaintiff’s submissions, that, if the Panel had had regard to those matters, it may have made different findings and conclusions about when she ceased work, when her left shoulder became symptomatic and whether her left shoulder condition was a sequela to her right shoulder injury.
For these reasons, ground 5 is made out.
Grounds 3, 4 and 6 – The Panel misunderstood the plaintiff’s evidence
In view of the conclusions that I have reached in respect of grounds 1, 2 and 5, it is not necessary for me to determine the remaining grounds relied on by the plaintiff. It is appropriate, however, for me to record my findings in relation to contested questions of fact which relate to grounds 3, 4 and 6.
Grounds 3, 4 and 6 raise interrelated issues and were dealt with together by the parties in their submissions. The substance of the plaintiff’s complaint under these grounds is that the Panel misunderstood her evidence relevant to the causation of her left shoulder condition and acted on the basis of that misunderstanding, thereby failing to afford her procedural fairness and to discharge its statutory task.[31]
[31]A challenge was also advanced on considerations grounds, namely, that: (a) by failing to take into account what the plaintiff told the Panel about the commencement of her left shoulder pain and her use of her left shoulder and arm after the fall, the Panel erred by failing to take into account a mandatory relevant considerations; and (b) by taking into account histories purportedly given to the Panel as to the onset of the plaintiff’s left shoulder pain which were not in fact given, the Panel erred by taking into account an irrelevant consideration.
Subject to hearing from the parties, the court also proposes to make an order that the first defendant pay the plaintiff’s costs of the proceeding, including any reserve costs, to be assessed by the Costs Court in default of agreement.
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